Tony Stark vs Ant-Man: Battle Over Advertising Using Iron Man’s Likeness Without Consent

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February 10, 2015

Marvel’s Ant-Man by Nick Spencer is giant size fun that packs the strength of a comic 100 times it size.

Scott Lang takes on his greatest challenge as Ant-Man: starting a security business. Ant-Man had to face bankers to get a loan, followed by a Nazi Atomic Robot from World War II that turned its victims to gold: the Midasbot.

Actually, the Robot was the easiest challenge Ant-Man had to face in the story. Securing a loan for his business, not so much.

After successfully securing a loan from a private investor, Ant-Man launched his advertising campaign with a roadside billboard that included Iron Man giving a thumbs-up with the quote, “I’d hire him.”

No amount of Pym Particles can shrink the big issue Scott Lang created for himself: Ant-Man did not get Tony Stark’s permission to use Iron Man’s likeness to market Ant-Man’s new business. We actually see Tony Stark tell a lawyer, “Sue.”

Tony Stark’s lawyers have multiple options to sue Ant-Man. The options include suing in California, or Florida, or in Federal Court on a Federal Question, or in Federal Court on Diversity Jurisdiction. The likely choice would be a hybrid.

California Dreaming

There is a very strong argument that Ant-Man violated California’s prohibition on using someone’s likeness without their consent, even though Ant-Man is in Miami.

California’s “long arm statute” states that a California Court “may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” Cal Code Civ Proc § 410.10.

Is a single roadside sign in Miami enough to establish personal jurisdiction over Ant-Man in California? One of Tony Stark’s lawyers would argue yes, because Ant-Man 1) knew Iron Man was in California and 2) had interviewed for a job with Tony Stark in San Francisco. This should be enough evidence to show Ant-Man purposefully available himself to the laws of California by using Iron Man’s likeness in Florida (at least according to Tony Stark’s lawyers). This is a very difficult argument to make successfully based on one sign in Miami.

Going Back to Miami

The better argument would be to sue in Federal Court either on diversity or Federal Question. Tony Stark has an excellent Federal Question: Copyright violation by using the image of Iron Man.

If in Federal Court based on copyright violation, a Federal Judge in Florida could hear the Florida state false advertising claims based on supplemental jurisdiction, because the claim is related to the copyright violation for using the image of Iron Man on the billboard, thus making it the same case or controversy under 28 USCS § 1367.

Tony Stark’s lawyers would likely prefer using California law prohibiting the use of someone’s likeness in advertising over Florida’s false advertising laws. This would require either suing in California, or going to Federal Court based on Diversity Jurisdiction, or suing over the copyright claims in Federal Court with the California claims being pendent to the copyright jurisdiction.

If a Federal Court were applying California law, or if California somehow had personal jurisdiction over Ant-Man, the relevant California law states:

(a) Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.

Cal Civ Code § 3344(a).

Tony Stark could prove that 1) Iron Man’s likeness was used by Ant-Man in marketing Ant-Man’s services and 2) Ant-Man did not get Tony Stark’s consent to use Iron Man’s likeness. What is interesting would be the actual damages, which might not meet dollar requirement to be in excess of $75,000 for diversity jurisdiction to get Stark into Federal Court in Florida.

Tony Stark could at least seek the statutory amount of $750 from Scott Lang. Given Stark’s wealth and the cost of litigation that would be simple damages for the sake of revenge on a financially bankrupt Scott Lang, who is living in a toy house to save money.

If Stark could prove his actual damages for appearing on one roadside sign in Miami, the amount of damages could go up. If Stark could prove Ant-Man’s profits were attributable to the use of Iron Man’s likeness, that amount would be in addition to the damages award, minus Ant-Man’s deductible expenses.

Could Stark claim his damages to be in excess of $75,000 for Diversity Jurisdiction? Unknown, but an Extremis powered lawyer from a Big Law Firm would sure try.

One option is to focus primarily on the violation of Tony Stark’s copyright in the Iron Man armor being used on the billboard. As Federal Courts have exclusive jurisdiction over copyright claims, a Federal Court could allow the California claims as being part of the same case. (See, Fed. Treasury Enter. Sojuzplodoimport v Spirits Int’l N.V. (2010, CA2 NY) 623 F3d 61, 96 USPQ2d 1906 for exclusive jurisdiction). In Astor–Honor, Inc. v Grosset & Dunlap, Inc., it was held a Federal court had the power to hear a complaint over the alleged conspiracy to infringe on a copyright, despite there being no diversity, because it was joined with copyright claims that had a common nucleus of facts. As such, claims can be joined if “one would ordinarily be expected to try them all in one judicial proceeding.” Astor–Honor, Inc. v Grosset & Dunlap, Inc. (1971, CA2 NY) 441 F2d 627, 170 USPQ 65, 14 FR Serv 2d 1502.

In a case with copyright and contract claims where the contract claim did not meet the amount in controversy to provide diversity jurisdiction, the Federal Court could hear the contract claims because the copyright claims gave the court jurisdiction based on a Federal Question (copyright) and pendent jurisdiction over the contract claim under 28 USCS § 1338(a). Powell v Green Hill Publishers, Inc. (1989, ND Ill) 719 F Supp 743, 14 USPQ2d 1760.

Based on the above, there is a strong chance the Invincible Iron Man would be able to sue the Astonishing Ant-Man in Federal Court, in Florida, with both copyright claims and seeking relief over using Iron Man’s likeness in advertising without Tony Stark’s permission.

There are many unanswered questions regarding Ant-Man’s new business. Did he incorporate in Florida? If so, what kind of corporate entity? What kind of business insurance does a security firm require? Does Ant-Man have the required OSHA postings for his single employee? How does the Affordable Care Act impact Ant-Man’s new business? Does Ant-Man get a tax break for hiring an ex-con?

Regardless of those answers, keep up the great work Nick Spencer.

Vice Presidential Charm School for Agent Carter

By

Josh Gilliland

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February 5, 2015

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The Agent Carter episode “The Iron Ceiling,” was a joyride of a Cold War spy story. Let’s fire up the spy typewriter to decode the legal issues.

The SSR Does Law Enforcement

Agent Carter declared to Jarvis, “I am a Federal Agent.”

This statement was very important, because it demonstrated that the SSR is conducting law enforcement in the United States. While we have not seen the SSR’s post-war charter from Congress, this statement supports what we have seen so far in the series: SSR Agents responding to cases beyond the scope of the FBI.

Who Was Agent Dooley Talking To?

Chief Dooley claimed the Vice President of the United States was calling him and demanding answers on Howard Stark. One very big problem with this part of the story: the United States did NOT have a Vice President in 1946.

Harry Truman assumed the Presidency upon President Franklin Roosevelt’s death in April 1945. At that time, there was no mechanism to install a new Vice President. As such, pursuant to the Presidential Succession Act of 1886, Secretary of State James F. Byrnes would become the President, in the event of President Harry Truman’s demise. Upon President Truman’s re-election in 1948, Alben W. Barkley would become Truman’s only Vice President on Inauguration Day 1949.

The United States would have to endure the loss of President Kennedy before the 25th Amendment was ratified, allowing a President to nominate someone to hold the office of Vice President in the event of a vacancy, which then requires a majority vote in Congress to confirm that individual.

The Soviet Charm School

Agent Carter, the SSR, and the Howling Commandos, led an incursion into the Soviet Union in their pursuant of Leviathan.

The SSR found the equivalent of a spy school for little girls. It was very reminiscent of Nelson DeMille’s book “The Charm School,” where US POW’s from Vietnam were used to train Soviet spies to be Americans. The school had the same theme, except instead of using US POW’s, the girls were forced to watch and repeat Snow White.

This should serve as a warning about women who speak like Snow White.

No one likes the idea of going to boarding school, but this place would violate so many child protection laws it is not funny. You cannot 1) handcuff children to beds or 2) teach the children to snap a classmate’s neck. Definitely sent the message, “In Mother Russia, Boarding School Boards You.”

The operation in the Soviet Union was not exactly “legal.” Sending the US military into a foreign country would be an act of war. This kind of mission would royally tick off Joseph Stalin. However, given this is a spy story, this sort of “black op” mission that risks starting a war in order to avoid starting a war is truly the stuff of Cold War spy stories.

Which brings us to a graduate of the Soviet Charm School for Black Widows: Is Dottie “Fatal Attraction” Crazy? Is Dottie a rogue spy? Is Dottie working for Levithan? How did she get rid of that dude’s body under her bed?

What Did We Learn About Fear on Gotham?

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Josh Gilliland

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February 3, 2015

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The Gotham episode “The Fearsome Dr. Crane,” had several important life lessons on fear.

Don’t Play “Tell Me a Secret” With a Mob Boss in the Woods

Sal Maroni, a large, strong man, with very fast hands, took Penguin into the woods to share secrets in a remote cabin. The fact pattern alone embodied every nightmare 1980s PSA with victims who ended up on milk cartons. Penguin, don’t go on car rides to someone’s cabin in the woods.

Men Who Wear Bow Ties Are Not Afraid of Baby Pigs

Wearing a bow tie takes confidence. Those of us who wear bow ties are used to those with knot envy mocking us. But we all know the truth: Bow Ties Are Cool.

Any man confident enough to wear a bow tie would not be afraid of a baby pig.

Now, being tied up in a slaughterhouse with pigs, complete with a creepy butcher wearing a pig mask who is preparing to slaughter you like an animal, screaming out in terror is totally normal in those circumstances.

Anyone who was “this little piggy went to the slaughterhouse” would have serious civil and criminal claims against Dr. Crane and his Pig-Butcher henchman. The butcher’s bill of crimes would include kidnapping, attempted murder, torture, assault, battery, intentional inflection of emotional distress, possibly cruelty to animals, and a host of other issues a district attorney would list in a criminal complaint.

Dr. Crane Has Seriously Violated the Hippocratic Oath

Doctors today do not swear to Apollo they will not cause hurt or damage to the sick, but they nearly take an oath to do no harm.

Dr. Crane went out of his way to cause harm, by inflicting the worst fears a victim had before killing them. In New York, this would be first-degree murder by torture, which is defined when a defendant acts in “an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim prior to the victim’s death.” NY CLS Penal § 125.27(x). Torture is “the intentional and depraved infliction of extreme physical pain” and “depraved” means the Defendant relished inflicting the pain upon the victim. Id.

Pretty sure a DA could prove Dr. Crane’s actions of hanging a man off a roof, who was afraid of heights, was murder by torture. Removing the victim’s adrenal glands would add desecration of a corpse to the list of crimes. Moreover, the attempts to kill the man afraid of pigs and drown a woman afraid of drowning were both attempted murder by torture (and conspiracies involving third parties).

Now, it was good to see Jim Gordon overcome his fear of an emotional connection with Dr. Leslie Thompkins, empowering him to grow beyond the toxic behavior of Barbara’s drug use and wildly inconsistent personality. Marry Dr. Thompkins and have a daughter named Barbara for a variation of comic canon. We are not afraid of that.

Just Who is the Legal Owner of Mjolnir?

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Josh Gilliland

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February 2, 2015

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Who owns Mjolnir? The fact there is a new Goddess of Thunder in Marvel comics causes pause over property rights. Let’s begin our journey into legal mystery on how worthiness is a condition for property ownership.

Thor’s Hammer technically should be personal property that an individual would own. As the Hammer was constructed by the dwarf Eitri in the comics (Sindri and Brokkr in Norse Mythology), then given to Odin by Eitri, and then given to Thor Odinson by Odin, Mjolnir should be the personal property of Thor Odinson as a gift from his father (Wikipedia has a summary of the Hammer’s creation).

However, as fast as you can say Beta Ray Bill, Mjolnir is inscribed with, “Whosoever holds this hammer, if he be worthy, shall possess the power of Thor.” As such, Mjolnir requires someone to be “worthy” in order to even lift the Hammer.

The requirement of “worthiness,” as judged by a sentient super weapon, creates a situation where the owner of the property could not use the property (Mjolnir), if the property deemed its owner “unworthy.” As such, Thor Odinson’s ownership in Mjolnir is conditional and can be revoked by the Hammer itself based on the user’s worthiness (Or in the case of Beta Ray Bill, someone who is worthy can have a competing ownership interest in Mjolnir).

There are no epic legends of lawyers in Norse Mythology, but this is legally odd. Normally a revocable transfer of property would allow the transferor to recover the property. In the case of Mjolnir, the Hammer was not transferred back to Odin (who the Hammer also deemed unworthy), but (apparently a human) woman who has yet to be identified. The fact the Hammer effectively selected its own new owner is outside the norms of existing property ownership laws.

In Thor #4, Thor Odinson confronted the new Thor to recover Mjolnir. There is a strong argument that Odinson had a valid claim to recover the Hammer. After all, the Hammer is personal chattel that Odinson had owned for centuries. However, as Mjolnir deemed Odinson unworthy after Nick Fury whispered something damning to Odinson in a fight above the Moon, the Hammer summarily revoked Odinson’s ownership interest. As such, ownership transferred to the yet to be identified new Thor based solely on worthiness (and her ability to travel to the Moon and without the need to wear a spacesuit).

What is legally unknown, is why Thor Odinson is no longer worthy to wear a shirt. The Tetsuo Shima look is a bold choice, but not proper courtroom attire.

Give the Nazi a Death Mint

By

Josh Gilliland

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January 29, 2015

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Agent Carter presented interesting issues over negotiating deals with people in custody. In the “Blitzgrieg Button,” Agent Dooley traveled to Germany to question the convicted Nazi war criminal Colonel Mueller on the Battle of Finow.

Dooley’s offer to get the Nazi awaiting the gallows to talk? A purported cyanide pill, so Colonel Mueller could have a dignified death, opposed to being hung.

HYDRA_Dummkopf_2890 — Shirt available from http://www.neatorama.com

Bet the Nazi was surprised the cyanide pill was actually a breath mint. At least Herr Colonel could burn in Hell with minty fresh breath.

Could Dooley lawfully offer Mueller an alternative form of execution in exchange for information? This seems legally problematic, as Nazis convicted during the Nurenberg Trials were done under international law, with cases adjudicated between the United States, the United Kingdom, and the Soviet Union.

Colonel Mueller was likely convicted for what Justice Robert Jackson outlined in the Prosecution’s Closing Argument in the Nuremberg Trials as Preparation and Waging of Wars of Aggression; Warfare in Disregard of International Law; and possibly Enslavement and Plunder of Populations in Occupied Countries. We do not know Colonel Mueller’s exact war record, but that is an educated guess for Herr Mueller to have a death sentence in 1946.

Given the fact Dooley was able to see Colonel Mueller on short notice, Dooley had the legal authority to interview the Colonel. It is difficult to imagine any legal authority for Dooley to lawfully offer Mueller an alternative form of death. An international tribunial found Mueller guilty and imposed execution by hanging for the Nazi’s crimes against humanity.

Colonel Mueller, if he had been tried in the United States, could have challenged his method of execution as being cruel and unusual punishment (today such a challenge would be brought as a 1983 action). Beardslee v Woodford, 395 F3d 1064 (2005). However, Courts have held that executions by hanging do not violate the 8^th Amendment. Campbell v Wood 18 F3d 662 (1994).

That being said, one could argue that Dooley’s “death mint” was cruel and unusual punishment. Dooley fraudulently got information from Mueller with the promise of a cyanide pill, so Mueller could avoid a possibly prolonged death by hanging. Once Mueller ingested the mint, and realized he had been lied to, the Colonel arguably would have had mental suffering awaiting his public execution. Assuming the Nazi had human feelings.

Regardless of those facts, the fictional Nazi had a trial, the right to confront witnesses, present evidence in his favor, and was convicted of his crimes. That is significantly more “Due Process” than the real Nazis gave any of their victims. As such, no one would care if a Nazi who killed women and children had his feelings hurt.

Dooley did the right thing.

Can Daredevil Sue Iron Man on Behalf of the FDA?

By

Josh Gilliland

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January 22, 2015

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Superior Iron Man #4 had the bombshell that Tony Stark had poisoned everyone in San Francisco by contaminating the water supply with Extremis 3.0. This makes sense, because how could an app physically change people?

Tom Taylor gave every geek lawyer a wonderful gift with Stark adding Extremis 3.0 to what had to be the Hetch Hetchy Regional Water System. It is fun to imagine Stark drones dumping 55-gallon drums of Extremis into Pilarcitos Reservoir in a toxic tort case. Moreover, it is very easy to envision Matt Murdock re-enacting A Civil Action to take on Tony Stark.

Daredevil confronted Tony Stark and threatened to represent the FDA in a case against Stark for adding an untested virus to San Francisco’s water supply?

Could Matt Murdock represent the FDA in such a case?

No, for a variety of reasons.

First, the FDA would have government lawyers represent the Government. Secondly, Murdock could not sue on behalf of the FDA on a private right of action for violating FDA regulations. (See, generally, Talbott v C.R. Bard, Inc., 865 F Supp 37, 39-40 [D Mass 1994]). Third, the fact Murdock heard the app trigger the virus makes Murdock a witness to the crime that would require testimony. Lawyers are not supposed to be their own witnesses in a lawsuit.

However, there is an interesting theory with state law. California law is specifically designed to give legal effect to the Nuremberg Code of Ethics in Medical Research and Declaration of Helsinki to prohibit unethical experiments on living human beings. Cal Health & Saf Code § 24171. A lawyer could successfully argue that adding an untested virus to the water supply violated the California statute incorporating the Nuremberg Code of Ethics in Medical Research and Declaration of Helsinki.

Could Murdock bring a private right of action against Stark for violating the Nuremberg Code of Ethics in Medical Research for conducting nonconsensual medical experiments?

Most likely no, but there is a small “maybe.”

Federal law likely would preempt California law if the focus of the case was on FDA violations. Moreover, no Federal Court has found a private right of action exists for violating the Nuremberg Code and international law. See, Abdullahi v. Pfizer, Inc., 562 F.3d 163, 175-176 (2d Cir. N.Y. 2009) and Robertson v. McGee, 2002 U.S. Dist. LEXIS 4072, 9-10 (N.D. Okla. Jan. 28, 2002).

No California Court has found a private right of action for violating Nuremberg Code of Ethics in Medical Research and Declaration of Helsinki, as given force by Cal Health & Saf Code § 24171. As one California Court stated on private rights of action:

The issue in a case such as this is primarily one of legislative intent. If the Legislature intended a private right of action, that usually ends the inquiry. If the Legislature intended there be no private right of action, that usually ends the inquiry. If we determine the Legislature expressed no intent on the matter either way, directly or impliedly, there is no private right of action… with the possible exception that compelling reasons of public policy might require judicial recognition of such a right.

Animal Legal Defense Fund v Mendes, 160 Cal App 4th 136, 142, [2008].

Would a California Judge find “compelling reasons of public policy,” that would require recognition of a private right of action? Most likely no, but if a Judge was ticked off enough by the population of San Francisco being infected with a virus on purpose, it certainly is possible for a Judge to empower Matt Murdock sue Tony Stark for playing Dr. Mengele on a private right of action.

Just because Matt Murdock cannot sue on behalf of the US Government or (most likely) the State of California, does not mean Tony Stark gets to infect people with a virus. The US Government and the State of California can prosecute Stark for violating the different state and Federal laws. Moreover, Matt Murdock can represent victims from San Francisco in what would be one of the biggest class actions ever.

Tony Stark would also have more to worry about then the FDA. The Environmental Protection Agency does not look kindly on chemicals being dumped in drinking water. Fish and Wildlife would also likely take aim for potentially infecting fish and animals with Extremis. The FBI would likely consider poisoning the water supply with an addictive virus an act of terrorism. That is just the beginning of Federal Agencies that would go after Stark in what would be one of the largest mass tort case against one person in fictional history.

No Mining Rights on Lothal

By

Josh Gilliland

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January 20, 2015

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Let’s face it, no one is as smooth talking with the ladies as Lando Calrissian. Despite Lando’s ability to impress a woman with, “You truly belong here with us among the clouds,” Lando’s sweet talk is not enough charm to the Empire into permitting mining rights on private property on Lothal.

Mining (on Earth) is a regulated activity, even on private property. There is substantial legislation about applying for permits to mine on public land or how to establish a claim.

On Lothal, the Empire continues to endear itself to the population by prohibiting mining on private property. In the United States, mining on private property (that is supposed to be a mine) does require permits in virtually every state. Moreover, the regulation of mining activities, such as requiring a permit, is not a “taking” of private property under the Fifth Amendment. M & J Coal Co. v United States, 47 F3d 1148, 1149 [Fed Cir 1995].

Why does the government regulate mining on private property? Health and public safety are obvious concerns. Neighbors are not thrilled when potentially hazardous materials become airborne and land on surrounding private property. Moreover, no one wants their neighbor blasting a new mine in a residential neighborhood on the argument, “It’s my property, I do what I want with TNT.”

Lothal provides a very different case study where the Empire has outright prohibited all mining on private property. If there had been existing mines that were prohibited from operation, suspending those pre-existing mining rights would be a “taking” of private property in the United States. Those miners should have been entitled to just compensation for their lost property rights. However, filing any such claims likely would have been treason, resulting in the property owner being sent to the Spice Mines of Kessel.

That being said, let’s not forget the important thing: We got to hear Billy Dee Williams voice Lando Calrissian. You old space pirate, it was good to see you.